The 2012 H-1B Season is Upon Us . . . Will This Year’s Economy Bring a Lottery? At this juncture, it does not seem likely. However, as the statistics from last year show, planning for the H-1B is the key to being able to continue your authorized work status in the U.S. It need not be said, but it is always best to seek competent immigration legal counsel to be able to find a way to legally remain in authorized work status in the U.S. 

Yes, it is that time of year again! We always hear the accountants moan and groan about the approaching April 15th deadline each year, but you have to listen a bit more closely and you will hear (and see) the U.S. business immigration lawyers and attorneys manifesting their continuing distaste for the April 1st filing date for cap-subject H-1B professional and specialty occupation workers. Well, here we go again . . .

April 1st, 2012 marks the first day when prospective H-1B petitioning employers and prospective H-1B employees will be able to apply to the U.S. Department of Labor (DOL) for Labor Condition Application (LCA) and H-1B visa petitions to the U.S. Citizenship and Immigration Services (CIS) for employment in the fiscal 2012-2013 year (FY 2012). Our advice to our H-1B employer clients continues to be that they need to think about filing H-1B petitions on (or very close to) April 1st for new and existing employees (usually international students in Optional Practical Training [OPT]) who will be eligible for first-time H-1B visas to begin their employment on or after October 1st, 2012.

By way of background, each Fiscal Year (FY), Congress has mandated an annual cap of 65,000 H-1B visas for “professional and specialty occupation workers” who possess the equivalence of a U.S. Bachelor’s Degree. There are also an additional 20,000 H-1B visas available for individuals who possess the U.S. Master’s Degree or other advanced degrees from U.S. Colleges or Universities.

Some cases are not subject to the cap. It continues to be the case that H-1B visa petitions filed on behalf of current workers who have been counted previously against the H-1B visa cap are not included in the annual cap established by Congress. Additionally, pursuant to the Chile and Singapore Free Trade Agreement, 6,800 H-1B visas are available exclusively to Chile and Singapore Nationals. The Singapore/Chile numbers reduce the total allotment of H-1B visas available each fiscal year to 58,200.

For many years, our office has assisted international students who had to deal with the “cap-gap” issue. We also assist employers with E-Verify applications, so that they can offer international students who are working for them in Optional Practical Training (OPT) a 17-month STEM extension.

In 2008, there was a regulation that gave some assistance to international students in the U.S. who applied for H-1B in their OPT period. At that time, a regulation was promulgated that provided “cap-gap” relief for F-1 students with pending H-1B petitions. For example, F-1 student visa holders who received work authorization in OPT were permitted to extend the authorized period of stay and work authorization as long as they have received approved H-1B visas prior to the expiration of the OPT.

Also, many Science, Technolo